Casey: DA plays cop in school bus 'murder' case

RICK CASEY, Copyright 2005 Houston Chronicle |
November 13, 2005

IT has been a little more than a month since Harris County prosecutor Warren Diepraam filed murder charges against the Pasadena ISD bus driver who accidentally ran over and killed a 9-year-old girl.

He said then he would soon seek an indictment from a grand jury.

But now Diepraam, apparently not satisfied with police reports on the incident, is conducting his own investigation before seeking indictment.

Without being specific, he says he has turned up important new information that might suggest that the driver, Jerry Cook, was more reckless than previously thought.

That may be, though I suspect defense lawyers have been gathering evidence suggesting the opposite.

I talked to Diepraam after he made a presentation at a seminar on prosecutorial ethics. Several lawyers sent me a flier on the seminar, opining that a prosecutor who would turn this accident into murder was an unlikely candidate to lecture on ethics.

DAs as Luke Skywalkers

They should have known better.

Diepraam began his lecture by saying, "Our job is to do justice. What is justice?"

He showed a slide of Luke Skywalker from Star Wars offering a heroic ethical role for prosecutors.

"That's justice," he said. "Doing the right thing at the right time for the right reason."

But what is right is an arguable concept, and it is the job of lawyers to argue.

While other lawyers argue that charging a school bus driver with murder for what everyone agrees was an accident is reprehensible, Diepraam argues that the girl had a right to live and so the murder charge, a first-degree felony with a possible life sentence, is warranted.

Ugly case made new law

So with the right thing to do being debatable, legal ethics are about doing what is allowed under the law.

Diepraam told me after the seminar that he was not basing the murder charge on the lesser offense of negligent homicide as previously indicated but on either injury to a child or endangering a child.

The Johnson case was ugly. It involved a child just younger than 2 who died of severe head injuries. Lubbock prosecutors charged Johnson, the boyfriend of the girl's mother, with injuring the girl.

The prosecutors then used a section of the homicide law that makes it a felony of the first degree for a person, while committing a separate felony other than manslaughter, to commit an "act clearly dangerous to human life that causes the death of an individual."

That provision, say experts, was put into the code to make it murder, for example, to recklessly shoot off a gun in order to scare people during a bank robbery. If a death results, even unintentionally, it is murder.

Manslaughter is excluded because lawmakers wanted to provide varying levels of charges and punishment depending on the intent of the killer.

In a previous case, the Court of Criminal Appeals ruled that the clause could not be used to turn criminal negligent homicide, a lesser charge than manslaughter, into murder.

Not to do so, it ruled, would relieve prosecutors "of the burden of proving mental state in most murder cases since murder usually results from some other form of assault."

The court ruled, "There must be a showing of felonious criminal conduct other than the assault causing the homicide."

That would seem to rule out making a bus accident into murder since the same action that was arguably reckless or criminally negligent was the action that caused the death. Every negligent death could become murder.

But in Johnson, the court ruled that, if a child younger than 15 is the victim, then murder can be charged. The reason: Unlike criminal negligent homicide, injury to a child is not a lesser offense included under manslaughter. And manslaughter is the only felony excluded in the felony-murder statute.

Since the lesser crime of endangering a child, which includes criminal negligence "that places a child younger than 15 years in imminent danger of death," is a state jail felony, it can be elevated to first-degree felony murder.

Mitch Berman, the UT Law School professor of criminal law and philosophy who earlier called Diepraam's strategy a "legal parlor trick," said he and other commentators consider the Johnson decision "outrageous."

"The practical effect is that any time a child is killed, even by accident, it can be a murder conviction," he said. "If the Texas Legislature had wanted to say that all homicides of children could be counted as murder, they would have done so. But no legislature, including Texas', has said that."

Every time a child dies it is a horrible tragedy. But Texas law makes it a state jail felony to accidentally kill a 15-year-old through gross negligence.

If legislators want Texas to be the first state to make it a first-degree felony if the same accident kills a 14-year-old, they should pass a law saying so.

Otherwise, they should pass a law undoing the Court of Criminal Appeals' decision in Johnson.